A Reader Writes

A friend in Tennessee writes:

Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.

Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here — wins, losses, and outright thrashings. I write this blog for the other criminal-defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say “. . . but this approach doesn’t always work so well.”

If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.

But this approach works very well, and the answer to your question is “never”. I have never gotten any of my clients into more trouble by doing due diligence instead of rushing them down to plead. Never.

Now, bear in mind that the people who come in looking for the quick copout are almost always accused of misdemeanors (people don’t come into the office looking to plead guilty to a felony “just to get it over with”), and always out on bond. In the jurisdictions in which I practice, it is almost never true that the first offer is the best offer, and it is almost never true that an accused who is on bond is best served by pleading guilty on the first court appearance.

The worst-case scenario for a client whom I’ve convinced to allow me to actually do my job (instead of just accepting his opinion that an immediate guilty plea is the best option) is this: I review the facts and the law, I discover some reason that the client must plead quickly (for example, the State has missed the true felony charges that could have been filed, and we need to jeopardy-bar them as soon as possible), and I help the client plead guilty immediately. That scenario is very rare, and that’s the absolute worst-case: no worse than if he hadn’t hired me.

The best-case scenario is that I find a way to beat the case (truly about half the time under these particular circumstances): to get it dismissed, to win at trial, or to otherwise get some outcome that can be expunged from the government’s records.

In the balance of cases, the fact that I perform due diligence, look for a way to win, and litigate what can be litigated results in final plea offers at least as good as — and usually significantly better than — the clients’d’ve gotten by pleading guilty straightaway.

Ethics are funny. We have rules laid down by the organizations that regulate lawyers; we lawyers talk about “legal ethics” but these are not really ethics but law. Then all of us have our own principles of right and wrong that govern our behavior regardless of the sanction that attaches. These principles really are ethics, and they’re intensely personal.

A lawyer who helps his clients plead guilty without carefully exploring the possible defenses is in dereliction of his duties; a lawyer who allows her clients, untutored both substantive and procedural law, to make the decision to discard their constitutional rights without input from the lawyer abdicates his responsibilities. These are the “lawyers” whom the clients pay a pittance to when they decide they don’t want to pay someone (me or someone else, it doesn’t really matter to me) real money to fight for them. In the case of those lawyers, I’ll call your “irresponsible and unethical” and raise you a “shameful.” Boooooo.

0 responses to “A Reader Writes”

  1. Don’t worry about that comment. One of the reasons I went into criminal defense work is that in law school I attended a lot of attorney association meetings and liked the way the cd lawyers were much less hierarchical than the others. There seemed to be a spirit of cooperation and a lot less questions and concern about whether you had made partner yet or were a regular at the most fashionable country club. since I started law school at 30, with 2 kids at home, that drew me in as the hierarchy of law school didn’t seem appealing afterwards.

    That’s why I come here also as its a great place to learn about practicing law and to share stories about what works and what doesn’t.

    I suspect the comment has more to do with the commentor than with you. In other words, it’s much easier to live with yourself as a lawyer who never goes to trial or pushes back if you adopt the view that resistance is not only futile, it’s harmful.

    Real criminal defense lawyers know this is false, but lawyers who practice criminal law rely on this to justify their role, which often more closely resembles KY jelly than real CD lawyering.

  2. I watched a private atty do a plea the other day on an agg child molestation case. He had rushed to plea as fast as he could. During the plea, when the judge asked if he had anything to add, the lawyer spent five minutes laying groundwork to protect himself from a possible Habeas claim for ineffective assistance.

    This guy is a domestic relations attorney who does the occasional misdemeanor case – usually family violence. It is the first felony I have ever seen him do. I overheard him outside later (speaking to family members) say that he was afraid the ADA would make it worse if he fought the case.

    and would the ada have made it worse? John Gibson

  3. 9:23, thanks for the comments.

    YS, I’ll leave it up to you to explore the KY jelly metaphor further.

    SHG, don’t stifle YS’s creativity! We want to help him develop self-confidence.

    2:48, since tort deform passed in Texas we’ve seen more and more civil lawyers down at the criminal courthouse, often doing immense damage. So would the ADA have made it worse?

    (Also, I removed your first comment. If Batman is going to inadvertently reveal his secret identity, I don’t want it happening here.)

  4. Did I say one post? I see a series on the subject of the Criminal Pretender as the equivalent of KY Jelly.

    Of course the natural extension of that becomes to what do we equate the actual Defender? Interesting.

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